@NorthMusicGroup Testimony to The IP Subcommittee Hearing on The Mechanical Licensing Collective

HEARING BEFORE THE UNITED STATES HOUSE OF REPRESENTATIVES
COMMITTEE ON THE JUDICIARY
Select Subcommittee on Courts, Intellectual Property, and the Internet


June 27, 2023
Testimony of Abby North
SUMMARY STATEMENT
Mr. Chairman, Members of the Subcommittee:

My name is Abby North. I am an independent music publisher and publishing administrator. I am a songwriter advocate. I am a technologist. I am a small business owner.

I began my career writing music, engineering and mixing recordings and ultimately created a
production music library. The library introduced me to music publishing.

My husband’s father was a film composer and songwriter named Alex North. When our family
had a worldwide reversion of rights in Alex’s song “Unchained Melody,” I wanted to learn about
global music publishing. “Unchained Melody” is a “standard” that has been recorded by thousands of artists but is best known as a recording by The Righteous Brothers in 1965. It is an “American Songbook” composition: one of the great songs of the 20th Century. Together, my family and the family of “Unchained Melody” lyricist Hy Zaret formed Unchained Melody Publishing LLC in 2013, and I began to administer our jointly owned copyright.

Unchained Melody Publishing then joined various foreign collective management organizations
(CMOs) and in doing so, I was able to identify incorrect or missing work and party metadata. By
correcting that metadata, I significantly increased our royalty collections. This is partly because
once I corrected our CMO registrations, our metadata stayed corrected over time.
Soon, other legacy songwriters and their families asked if I would administer their works as well.

As a music publishing administrator, I am responsible for accurately and comprehensively
maintaining metadata related to the musical works owned and created by my songwriter and
composer clients, their families and heirs. I must accurately and comprehensively register their
works with collective management organizations around the world.

These global CMOs rely on their music publisher affiliates to deliver works registrations that
clearly identify information about the musical works, about the songwriters and their publishing
entities, about the shares of the works that we own and collect, and about sound recordings that embody these songwriter’s works.

If we publishers do not register our works, we do not get paid and neither do our songwriters. It’s a simple equation: accurate, comprehensive metadata equals accurate, comprehensive royalty distribution.

THE MUSIC MODERNIZATION ACT
When I first heard about the Music Modernization Act and the possibility of a mechanical blanket license administered by one central CMO, I was pleased and hopeful. The previous method of one-off mechanical licensing was inefficient, unscalable, and absolutely
not meant for the digital distribution of music and the limitless supply of sound recordings being delivered to the Digital Service Providers. Blanket licenses can create efficiencies if based on authoritative and complete metadata.

In fact, every other CMO I am aware of outside of the United States has been blanket licens
mechanical rights for years. How exciting to see the United States catch up to the rest of the world’s CMOs!

That the Music Modernization Act was wholeheartedly supported by every sector of the music
business: songwriters, publishers, labels, artists and producers seemed like a modern-day miracle. We all have competing interests, but we came together, and the Music Modernization Act passed. I believed (and was promised) that the intention of the MMA was for a new authoritative database to be engineered and created, with closely interrogated and vetted, accurate, authoritative, comprehensive musical work, songwriter, publisher, performer and even sound recording data.

The music industry was told that The MLC’s data set was going to be the gold star standard that every global CMO could access and rely on.

Songwriters need this, and that’s what we were promised.

And, we were promised that the DSPs would pay for The MLC to perform this fundamental
obligation.

THE MECHANICAL LICENSING COLLECTIVE
The MLC Inc. won the assignment to be the first Mechanical Licensing Collective as created by
the MMA. We were told that after interviewing many competitors, The MLC, Inc. opted to engage the Harry Fox Agency as its data and back-end operations and administration vendor for an “unprecedented and truly revolutionary project.”

HFA has been integral to the music business since 1927. But the industry is well-aware that like
every other collective, HFA’s data is incomplete and sometimes inaccurate. Incomplete accounting by HFA was one driver of the push for the MLC in the first place.

One data set is not enough for the Herculean task of creating the best-in-class musical works
database. Based on my experience as a publishing administrator and technologist, I think that The MLC must license data from many providers, including HFA, Music Reports, SX Works/CMRRA, Xperi, and others.

Thus far, to my knowledge, the promised newly-created MLC database and new data set do not
exist.

When The MLC launched, it used slogans like “Play Your Part” to drive music publishers and
self-administered songwriters to sign up with The MLC, register their works and confirm the
completeness of The MLC’s data, often manually and on a song-by-song basis. But, it seems that “Playing Our Part” means doing The MLC’s job and devoting our own resources to the tasks the DSPs pay The MLC to do. Publishers have to go to The MLC to search for their works, one-by-one to see if the data and shares are correct. Publishers have to slowly and painstakingly search through the MLC’s Matching Tool to find unmatched recordings of their works.

MATCHING SOUND RECORDING TO MUSICAL WORK
Publishers and songwriters receive statutory mechanical royalties when recordings of their works are streamed or downloaded.

A significant part of The MLC’s mandated role is to match sound recordings to musical works in
its database. If a sound recording is not matched to a musical work, the publisher and songwriter do not receive mechanical royalties for that recording’s streams and downloads.
As an example of one kind of problem I’ve experienced with The MLC’s data, per The MLC,
“Unchained Melody” has been recorded by more than 30,000 performers. I would like to diligence those recordings by comparing The MLC’s data to my own data to confirm and track payments.

As part of my due diligence, I asked The MLC for a list of those sound recordings that The MLC
claims to have matched to the “Unchained Melody” composition. That type of list should be
exportable by The MLC for copyright owners and is available from other CMOs. However, The
MLC told me it was not possible for The MLC to export such a list. I was told if I had access to
the MLC’s vast data dump, then I could go find the information for my one song.
In order for publishers to perform mechanical royalty income tracking exercises, we must know
the International Standard Recording Code (ISRC) of the sound recording so we may confirm we have accurately been paid for the correct number of streams or downloads.

With a song like “Unchained Melody” and other very important and iconic American Songbook
songs, there are possibly hundreds, or thousands of new cover recordings released every year.
Publishers use various sources to identify and track royalties received (or not received) for streams and downloads of those recordings.

Fortunately, I do have access to The MLC’s data dump. I paid tens of thousands of dollars to create tech that allows me to compare data from The MLC and other sources in order to identify data gaps and errors. In order to get a sense of the quality of The MLC’s data, I queried The MLC data on behalf of various clients. For one well-known legacy song, 11% of the sound recording to composition matches were incorrect. For another, 20% of the sound recording to composition matches were incorrect. This is why I wanted to export a list of sound recording matches made by The MLC. I can’t be the only publisher who needs a streamlined, efficient way to access, view and analyze The MLC’s data.

THE BLACK BOX
Prior to the inception of The MLC, the DSPs held approximately $424,000,000—that we know
of–in unallocated royalties, otherwise known as Black Box money. After the MMA passed, the
DSPs transferred that money to The MLC, which has held those monies and even more unallocated sums for years.

If I licensed my works to DSPs pre-MMA and if I now register my works with The MLC, my
money should not be in that Black Box. But sometimes I have co-publishers who deliver different data about our shared works that overwrites data I delivered. Sometimes I am unaware of a recording of my work, perhaps because it’s in a foreign language, or perhaps because as in Jamaica where “Unchained Melody” is popularly known as “Unchanged Melody” the recording has a known title permutation inconsistent with the US song title.

Foreign songwriters or songwriters from within the United States who are not affiliated with
established CMOs and/or who are unfamiliar with the registration process undoubtedly have
money in that Black Box. This is especially likely for songwriters who create in languages other
than English, such as Spanish-language songwriters.

Foreign language characters such as accents or tildes often come across as jumbled data on
reporting statements from The MLC. Asian characters may be extremely difficult to translate.
It is understandable that all collectives have some unidentified works and parties from time to time, but by statute, The MLC is mandated to aggressively work and create technology to reduce that Black Box significantly. The world is experiencing rapid growth and development of Artificial Intelligence talent and technology. AI and machine learning technology utilized and trained well could assist in making composition to sound recording matches and identification of works and their parties.

Some of the money that is referred to as “Black Box” is actually claimed and matched but has been held as The MLC awaits the final decision regarding CRB Phonorecords III rates and terms. These 2018 – 2022 royalties apparently will soon be distributed by The MLC. We must prevent the wrong parties from receiving these royalties. As per above, my own research showed recordings matched to the wrong musical works.

The MLC must develop or license and utilize the best technology, the best and most comprehensive data and extremely attentive human beings to improve its quality of data.

AGGREGATORS OPENING FLOODGATES OF BAD DATA

Another example of a recurring problem I have with the MLC involves misclaimed copyright
shares by independent, DIY artists, of which there are thousands. Sound recording distribution aggregators such as Tunecore and CDBaby have lowered the barrier for delivery to DSPs in a dramatic way. Today, approximately 100,000 recordings per day are distributed to the various DSPs.

However, in creating the unfettered opportunity for anyone to distribute a sound recording, these aggregators have also flooded the CMOs with incorrect musical work data.
It is an honor and a blessing to control a song that so many performers choose to record. However, it is time-consuming to constantly police the erroneous data provided by so many of these performers. This is particularly frustrating when I have already corrected the same data.
In order to deliver a sound recording via an aggregator, the label or independent artist is required to provide information regarding the musical works embodied in the sound recordings to be distributed. Even if that artist has no idea who the writer or publishers are, that artist must provide some data.

Giving them the benefit of the doubt, many of these independent artists are unfamiliar with the
fact that the sound recording copyright is different from the composition copyright, and they
regularly identify themselves as writer and copyright owner when they are neither, and then falsely assign publishing administration to the aggregator’s publishing services. The aggregator’s publishing administration provider then executes its administrative role and attempts to collect this infringing share.

At least on a monthly basis. I must play whack-a-mole, searching The MLC’s portal to find new
registrations of “Unchained Melody” that make no mention of Alex North as composer, Hy Zaret as lyricist, or of our publishing entities.

We, as an industry, must force some vetting and validation mechanism in between the aggregators and The MLC (and other CMOs) and the DSPs. Musical work data must not be delivered into the music ecosystem until it has been vetted and validated. Every American Songbook and most frequently covered song I have reviewed at The MLC has the same problem with infringing data delivered on behalf of unknowing independent artists, and
we need a solution.

When I claim these infringing registrations at The MLC, my underlying registration of “Unchained Melody” goes into suspense. Meaning, “Unchained Melody” is iconic and well-known worldwide, and our data is easily searchable at other CMOs who do know who the writers and publishers are.

Unfortunately, music publishers have to repeatedly fight for our rights and our data at The MLC.
This is not the gold standard. With all the promise and hope of The MLC, I expected that the US
collective would be at least as good as, if not better than, the best foreign CMO.

I suggest that some iconic musical works should have flags preventing the wrong parties from
making claims. For example, if the song was a hit written and performed by a band, that song’s
writers are widely known, and no other person should be able to submit a registration claiming
that work. If I try to claim I am a writer of the Mancini/Mercer composition, “Moon River,” The
MLC should be aware I have no rights to that work. Our precious American Songbook treasures
and their songwriters must be protected.

The MLC was presented as a savior to songwriters. With the passing of the MMA, songwriters
were promised they’d finally receive all the mechanical royalties they are entitled to. Protecting
the works created by songwriters is a powerful step in this direction.
It’s been three years and the MLC is a long way from best in class. In fact, US publishers are
engaging the Canadian collective CMRRA, for a fee, to fix their data problems at The MLC. In
my experience, I have never heard of one CMO cleaning another CMO’s data. And, the publishers are paying for this service despite promises to the contrary.

CLAIM OVERLAP/DISPUTE RESOLUTION
To make the above even more complicated, there is no claim overlap/dispute resolution portal
within The MLC’s website.

With tens of millions of dollars paid by the DSPs to The MLC for operations and technology
development, The MLC has the opportunity to create truly innovative products, including at least a basic claim overlap/dispute resolution portal. Other collectives, such as SoundExchange and CMRRA have functional claiming portals.

A claiming overlap/dispute resolution tool could allow the parties to upload documents
substantiating claims, could allow the parties to directly communicate via the portal and facilitate resolution.

In the “Moon River” example above, this claiming portal could have information about “Moon
River” and its writers and parties that alerts others they have no right to claim this work, and also indicates to The MLC that it must block the infringing new claim. Preventing the infringing claims from occurring in the first place would also prevent “Moon River’s” mechanical royalties from going into suspense.

MLC CREATING BUSINESS RULES THAT CONTRADICT EXISTING LAW AND
REGULATIONS AND CREATE DOUBLE STANDARDS
The US copyright law permits authors or their heirs, under certain circumstances, to terminate the exclusive or non-exclusive grant of a transfer or license of an author’s copyright in a work.
The ability to recapture rights via the United States copyright termination system truly provides
composers, songwriters and recording artists and their heirs, a “second bite of the apple.” Many of my clients exercise this right and subsequently become the original publisher in the United States.
The unilateral decision made by The MLC that rights held at the inception of the new blanket
license might remain, in perpetuity, with the original copyright grantee was frightening. Not
recognizing that the derivative work exception does not apply in the context of the mechanical
blanket license would unquestionably have benefited the major publishers who control the bulk of legacy copyrights. It would have harmed songwriters and their families.

Fortunately, the US Copyright Office stepped in clarify that the appropriate payee under the
mechanical blanket license to whom the MLC must distribute royalties in connection with a
statutory termination is the copyright owner at the time the work is used.


The MLC has made unilateral decisions regarding how it treats public domain works. It invoices
the DSPs for streams of recordings that embody these public domain works, but no publisher is
entitled to these royalties. That means the MLC may collect money it may not pay out. This
makes little sense.

CONCLUSION
Music publishing administration and collective management of rights are very challenging
businesses. I control one of the most iconic of all of the American Songbook works, but I am truly an independent publisher. I work for my family and the other heirs who use the royalties we receive from our musical works to pay for mortgages, college educations, and food. I realize that The MLC considers me to be annoying and difficult, but I am responsible for the livelihood of others, and I am responsible for keeping alive the legacies of Alex North, Hy Zaret and the many other legacy songwriters I represent.

As such, I will continue to push for The MLC to meet the promises made by the MMA.
As a songwriter advocate, it is so important to me that songwriters collect every penny they are
due. Without songwriters and the songs they create, there is no music business. Songs connect people, define eras and bring joy.

The MLC must use its resources to perform its mandated duty to create a truly authoritative,
accurate, comprehensive database. It must use its resources to identify unidentified works and
parties. And it must make sure the wrong parties do not receive songwriter royalties.
The MLC must not make unilateral decisions that affect the lives of songwriters and music
publishers. If there is a question regarding a law, regulation or internal policy, the US Copyright
Office must be consulted and must participate in the decision- or rule-making process to take
corrective action or refer a matter to someone who can.

The MMA does not authorize The MLC to make legal decisions. The MLC is not judge, not jury,
and not arbiter. Rather, it was created to be a neutral mechanical royalty pass-through entity.
On behalf of songwriters who were told The MLC was going to get them paid, The MLC must
engage every resource, every data set, every technique and technology available in order to identify the unidentified and the misidentified. The MLC has the money and it has the staffing.

The MLC simply must do the job the DSPs are paying it to do. Until these tasks are completed, songwriters are not only being ill-served, songwriters are being harmed.

by thetrichordist

@RepDarrellIssa Holds a Hearing on the Mechanical Licensing Collective

By Chris Castle

U.S. Representative Darrell Issa and the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet that he chairs will hold a field hearing on Tuesday, June 27, 2023, at 10:00 a.m. CT at Belmont University, Gabhart Student Center, in Nashville, Tennessee. The hearing, entitled “Five Years Later – The Music Modernization Act,” will focus on the entire blanket licensing regime added to the Copyright Act by the MMA to (1) administer blanket mechanical licenses for “covered activities” (largely streaming) and (2) to collect and distribute compulsory mechanical licensing royalties. 

Most importantly, the IP Subcommittee website tells us that “[t]he hearing will also explore whether the legislation is operating as intended by Congress and consider reforms.”  So why is this happening and why is it happening right now given everything else that Congress is dealing with.

Congress considers whether to renew The MLC, Inc.‘s designation as the mechanical licensing collective. If that sentence seems contradictory, remember those are two different things: the mechanical licensing collective is the statutory body that administers most of the compulsory license under Section 115 of the Copyright Act that was the entirety of Title I of the Music Modernization Act (aka the Harry Fox Preservation Act). The MLC, Inc. is the private company that was “designated” by Congress through its Copyright Office to do the work of the mechanical licensing collective. This is like the form of a body that performs a function (the mechanical licensing collective) and having to animate that form with actual humans (The MLC, Inc.). The MLC, Inc. was designated by the Copyright Office in 2019.

Congress reviews the work product of The MLC, Inc. every five years (17 USC §115(d)(3)(B)(ii)) to decide if Congress should allow The MLC, Inc. to continue another five years. That is, Congress has the right to fire The MLC, Inc. and find someone else if they fail to perform. Hence, “Five Years Later” in the title of the field hearing. This process is called “designation” or “redesignation” and is performed for Congress by the U.S. Copyright Office in their soft oversight role.

That five year period is actually up next year, so Congress may be getting an early start to identify performance benchmarks for The MLC, Inc. so that the Copyright Office doesn’t have to wing it. If you have some thoughts about what The MLC, Inc. could be doing better or is doing well, you have a chance to write to your representative or even members of the subcommittee before (or after) the June 27 hearing and let them know.

The witness list is well-chosen and seems unlikely to produce the usual propaganda from the controlled opposition that the lobbyists usually try to spoon feed to lawmakers:

I have a few concerns myself. 

  1. Investment Policy: According to its 2021 tax return, the MLC, Inc. was at that time holding more than $650 million in publicly traded securities. According to the MLC, Inc.’s annual report (at p. 4), this sum seems to include the $424 million of black box monies that the MLC, Inc. received in 2021. Congress is entitled to know exactly how this money is handled, where it resides and who is responsible for making investment decisions.

    Congress should consider whether all black box sums and unspent operating costs advanced by blanket licensees should be held in a bank account controlled by the US government so that there is no confusion if Congress fires The MLC, Inc. or any successor.

    Congress should also consider whether the same fiduciary duties apply to The MLC, Inc.’s management of the black box as would apply to a pension fund (under ERISA) or comparable duty. (There’s lots of pension funds and even banks with less than $600 million in assets and they are all regulated.) At least with a pension fund the fund trustees know who they owe money to; The MLC, Inc. seems like it should have an even higher responsibility to be good stewards of money it owes to the very unknown songwriters Congress tasked it with finding, thus cementing the moral hazard.  

    It goes without saying that the infamous “Hoffa Clause” in the MMA should be repealed (17 U.S.C. § 115 (d)(7)(C)). The Hoffa Clause allows the collective to dip into the black box to pay its expenses if the millions of the administrative assessment paid by the blanket licensees just isn’t quite enough.
  2. Succession Plan: What if Congress did fire The MLC, Inc.? Is there a succession plan in place that would allow the seamless transfer to a new collective of databases, operating software, cash on hand, and of course the black box? If there is a succession plan in place, then perhaps Mr. Ahrend should bring it with him to Chairman Issa’s hearing for the records. If not, perhaps he could draft one. In any event, Mr. Ahrend should have ready answers to at least some questions about a succession plan should the Subcommittee ask him. After all, the lobbyists wrote the bill and the five year review language was written into the earliest drafts so he should expect a few questions about what happens. Particularly since the Subcommittee has announced that they want to know “…whether the legislation is operating as intended by Congress and consider reforms.”
  3. Nondisclosure Agreements: I am struck by the fact that there have been no leaks of information about the black box, investment policy, or even life at The MLC, Inc. This usually means that there are nondisclosure agreements in place that scare people into silence–along with a healthy dose of intimidation in a small and incestuous industry when it’s likely that your employer is on the board of directors. Maybe not, but Congress may want to find out what these people are up to so it can decide if it wants to let them keep doing it. This may seem like a small issue, but either people aren’t talking because they have nothing to say or people are talking but nobody will print the story.
  4. Songwriter Directors and Geographical Diversity: The hearing may provide a good opportunity for the Subcommittee to look into how the collective’s controversial board composition is working out, not to mention the membership levels in the confusing by laws of The MLC, Inc. For example, I for one really see no reason to continue the concept of non-voting directors on the board, and Congress could just eliminate that role. One need only look to other collectives and PROs in the US and around the world for examples. A non-voting board member is a close analog to a “board observer” which is usually someone appointed by an investor to essentially spy on the board.  

    Similarly, it must be said that all the board members are either from New York, Nashville, Los Angeles or are lobbyists from the Imperial City. There are songwriters all over the country and internationally. Since the collective is really a quasi governmental organization, it is entirely in the remit of Congress to increase transparency and fairness as well as diversity. This could be accomplished by requiring an equal number of songwriter and publisher directors and having them come from states or regions with a big music contribution to America such as one of the reservations ,Atlanta, Chicago, Houston, Miami, New Orleans, Tulsa or Appalachia.  
  5. Revisit the Compulsory License: There is, of course, the threshold question of whether the compulsory license should be continued at all. This five year examination really should include this fundamental review rather than just blindly pushing forward with the compulsory license. (I discussed this in some detail in a separate post.) One songwriter has suggested that the Copyright Office reprise another study on the continued viability of the entire compulsory license system and I think he’s got a point there. Perhaps the Subcommittee could task the Copyright Office with conducting such a study as a finding of the field hearing. Those studies allow the public to comment without fear or favor which would be a breath of fresh air. Congress could then hear from more people whose jobs depend on the system working well resulting in the payments to songwriters that Congress wanted rather than the system just stumbling on resulting in high salaries to the operators and little to no transparency.

    Let’s see what happens at the field hearing.  You can watch it here courtesy of the YouTube monopoly.



    This post first appeared in MusicTechPolicy
by Trichordist Editor

Let’s #PreserveRockwood

New York City’s Rockwood Music Hall is one of the most important venues in the country, especially for independent artists. This is not just a dagger in the heart of New York, it’s a vital platform for artists to reach a New York audience on one of the three Rockwood stages. Like many venues, Rockwood is in financial trouble and is asking for help.

Our friend Blake Morgan has had tremendous support from Rockwood as a long-time artist in residence so this strikes close to home. Blake says “I grew up on the Lower East Side.” I remember when we lost CBGB’s, The Living Room, Luna Lounge, and so many others. Rockwood cannot meet the same fate, it’s the Ryman Auditorium of independent music in this country.”

If you’re not able to attend one of the Rockwood Benefit Concert series, please consider a contribution to the venue through their Go Fund Me page. Find out more about it at Preserve Rockwood.

https://twitter.com/RockwoodNYC/status/1672245197571325955
by thetrichordist

Science Journal Nature Bars AI Generated Illustrations

Well that was only a matter of time.  Nature, one of the leading scientific journals in the world, has announced that it will not allow the use of generative AI images or video. (Thanks to Cynthia Turner for the catch.). 

I must say that the journal’s rationale for rejecting this latest stop in Silicon Valley’s newest bubble is a pretty concise statement of the criminality of the bubble riders:

Why are we disallowing the use of generative AI in visual content? Ultimately, it is a question of integrity. The process of publishing — as far as both science and art are concerned — is underpinned by a shared commitment to integrity. That includes transparency. As researchers, editors and publishers, we all need to know the sources of data and images, so that these can be verified as accurate and true. Existing generative AI tools do not provide access to their sources so that such verification can happen.

Then there’s attribution: when existing work is used or cited, it must be attributed. This is a core principle of science and art, and generative AI tools do not conform to this expectation. (Not to mention the Universal Declaration of Human Rights (article 27(2)) among other human rights instruments.)

Consent and permission are also factors. These must be obtained if, for example, people are being identified or the intellectual property of artists and illustrators is involved. Again, common applications of generative AI fail these tests.

Generative AI systems are being trained on images for which no efforts have been made to identify the source. Copyright-protected works are routinely being used to train generative AI without appropriate permissions. In some cases, privacy is also being violated — for example, when generative AI systems create what look like photographs or videos of people without their consent. In addition to privacy concerns, the ease with which these ‘deepfakes’ can be created is accelerating the spread of false information.

So that about sums it up. I would add that what Silicon Valley likes is the free-riding profit that is built in to failing to honor each of Nature’s objections aka what economists and tort lawyers call negative externalities.

by thetrichordist

Guest Post: Attempts to Ban the Song “Glory to Hong Kong” Illustrate Just How Powerful and “Dangerous” Music is Perceived to Be

By Charles J. Sanders

We’ve all seen the headlines from around the world. Musicians, songwriters and composers attacked as rabble-rousers and enemies of the state. Singers arrested, their performances banned as un-patriotic or sacrilegious. We’ve even seen lethal attacks committed against music creators for refusing to perform, or simply for attempting to entertain, not even to proselytize or lampoon.  And just in the past few days, we have seen legal action instituted by a foreign global power against the performance of domestic protest music on a global basis.

No matter our individual political or musical affiliations, the mission of the American music community is clear. We must quickly and effectively formulate ways to help curb this global, governmental trend of singling out artists and music creators for punishment, due in large measure to the perceived, “dangerous” power of music.  Case in point:

In 2019, amid civil unrest in Hong Kong over Chinese Government efforts to crack down on what it deems unacceptable speech, a pro-Hong Kong Independence movement leader known only by the pseudonym “Thomas dgx yhl” penned a song known as “Glory to Hong Kong.”  The composition was immediately embraced by Hong Kong street protesters, translated into various languages on the Internet, and eventually widely recorded and distributed.  In short order, those recordings were being played not only on the Net but in Hong Kong shopping malls and at sporting events and other gatherings, prompting public sing-alongs that have increasingly alarmed Chinese Government officials in Beijing.[1]  

Two weeks ago, on June 5, 2023, the Beijing-aligned Government of Hong Kong announced it had heard enough.  Having previously banned the secessionist anthem “Liberate Hong Kong” after protests began in 2019, it went to court seeking an even broader injunction against “Glory to Hong Kong” that if granted would bar performance, broadcast, and distribution of the song throughout China (and potentially lead to the punishing of Chinese citizens and companies operating in China for violating the ban elsewhere in the world).  According to the Government’s court submissions, the song’s lyrics are meant to provoke secessionist acts in violation of Chinese law, and the court should act to eliminate the dangerous confusion that has been caused by the “mistaken use” of the song in place of the official Chinese national anthem at local and international events in Hong Kong and elsewhere.[2]  Court hearings are scheduled to resume in Hong Kong on July 21, 2023.

As is often the case when governments attempt to ban musical works, the song instantly skyrocketed in popularity.  Within days of the court filing, “Glory to Hong Kong” topped the Apple iTunes charts, which may have resulted in further governmental action behind the scenes. The original version of the song recorded by DGX Music (presumably related to Thomas dgx yhl) has now reportedly been pulled from global music streaming platforms such as Spotify, Apple Music, Facebook and Instagram’s Reels system.  According to DGX, the disappearance of its version from these services is due to the company’s “dealing with some technical issues related to streaming platforms,” and it expressed regret for this “temporary” issue.  The specter of likely governmental coercion against the creator(s), the label and its distributors, however, continues to hang heavily over the entire incident. 

Obviously, what we are witnessing in real time is yet another in a nearly endless series of attempts by governments and powerful interests around the world to forcibly remove politically contentious musical works from the public sphere and punish their creators. 

This past March, the National Music Council of the United States (NMC), in partnership with the International Music Council (IMC) based in Paris, explored the historical roots of this phenomenon in the hopes of helping the world-wide music community to fashion strategies for ensuring more effective, speech-related protections for music creators in the future.  The NMC’s extensive briefing papers for the symposium trace the long litany of repression and coercion against individual creators who used their music to protest social and political injustice, including the murder by the extreme right-wing Pinochet regime in Chile of folksinger Victor Jara, the genocide carried out against Cambodian musicians and composers by the extreme left-wing Khmer Rouge Regime, and the attempted erasure of Native American/First Nation/Aboriginal music and culture by Constitutional democracies including the United States, Canada, the UK and Australia—efforts that often resulted in the brutal deaths of those who resisted.[3]  

Music-based repression and coercion, the NMC concluded, are clearly global problems unlimited by either their political or geographic origins:

Music’s dual, facile ability to serve as both a powerful tool of propaganda and as an existential threat to power structures and political leaders has made it a prime focus of nervous governmental concern over the entire span of history….[M]usic creators and performers have [thus] not only been frequently subject to pressure to conform and participate in governmental propaganda efforts, but also to repressive actions up to and including murder to enforce the silence of those dangerous, high-profile individuals who will not comply. In many cases, this effectively neuters the most persuasive voices of protest, while at the same time setting an example of what happens to those less visible citizens who choose dissent. The repression of music and creators is a government’s way of warning all of its people, “if this is what we’ll do to them, imagine what we’ll do to you.”

For the American music creator community, it’s that last point that should be our initial, paramount concern.  While we may argue over whether certain a musical expression (other than outright hate speech) constitutes patriotism or treason, it is incumbent upon us to champion the position that violence and imprisonment for expressing unpopular views should not be imposed on any person by any government, anywhere.  Though speech freedom advocates may argue for a far broader effort to protect free musical expression –and in the future that may come– job one is to protect the lives and liberties of music creators who have been singled out today for political punishment. 

How?  By not remaining silent. 

At the NMC/IMC symposium, international experts and activists such as Ole Reitof of UNESCO, Julie Trébault of the Artists at Risk Coalition, Mark Ludwig of the Terezin Music Foundation, Dr. Ahmad Sarmast of the Afghanistan National Institute of Music, and Arn Chorn Pond of the Cambodian Living Arts organization, all agreed on the opportunities for the US music community to protect fellow, global music creators and performers from official repression by speaking out in appropriate ways.  Their advice may be distilled to three basic principles:

First, do no harm. This Hippocratic starting point for every effort to assist requires that all international actions must be carefully calibrated to avoid backlash against the endangered individual or group, and should be undertaken only in consultation with those knowledgeable about the local intricacies related to each incident. 

Second, take action by shining a spotlight in the United States on the most egregious cases of music suppression wherever in the world they take place.  Write letters to the White House, to Congress, and to the US State Department and the US Trade Representative concerning individual cases, requesting that the US Government take appropriate steps to save the lives and freedoms of those at risk.  (Other actions may be contemplated, but only after the “no harm” principle has been fully strategized).

Third, for those not willing or unable to take such actions, lend support to organizations engaged directly in protecting the lives and liberties of members of the music community around the world.[4]  

Artistic activism and the defense of it will never be an act of courage devoid of risk.  The ability in the US to speak out on such issues principally without fear of government reprisal, however, places on us a special responsibility to shine that brighter light on these escalating injustices and attacks.  Our community’s responsibilities are to ensure that such anti-democratic activities not remain hidden in the shadows, no matter where in the world they occur—including within our own borders. 

If history has taught us one thing about the persecution of artists and creators, it is that silence is neither an effective nor an acceptable strategy.

Charles J. Sanders

Chair, The National Music Council of the United States

[1] An English language version of the song is accessible at https://www.youtube.com/watch?v=6yjLlYNFKCg.

[2] Hong Kong, a former British protectorate the rule over which was transferred to Beijing in 1997, has continued to maintain its own political and economic systems for the past quarter-century.  Within the past decade, however, the Government of China has concentrated its efforts on bringing Hong Kong more closely in line with Beijing’s governing philosophies—including the stricter control of political speech.  In its submission to the court, the Government pre-emptively sought to quash accusations of censorship by asserting that Beijing “respects and values the rights and freedoms protected by the Basic Law (including freedom of speech), but freedom of speech is not absolute…. The application pursues the legitimate aim of safeguarding national security and is necessary, reasonable, legitimate, and consistent with the Bill of Rights….”

[3] See, https://www.musiccouncil.org/music-politics-history/.  The author of this statement was also the author of the Briefing Papers on behalf of the NMC.

[4] For a list of some non-profit organizations engaged in such activities, see, https://www.musiccouncil.org/protecting-free-speech-in-the-global-music-landscape/

by Trichordist Editor

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by Trichordist Editor